• November 14, 2016

pinkie_pie_bubble ponyUpdated post (November 14, 2016): Plaintiff Bubble Pony hopes for a more receptive audience before Sr. U.S. District Court Judge David S. Doty (D. Minn.) than BP got before U.S. Mag. Judge Franklin L. Noel on BP’s second motion to amend its complaint.

As discussed below, Plaintiff BP (Mr. Patrick Glynn), a digital game programmer, exchanged text messages with Defendant Facepunch discussing the financial terms of Glynn’s work for Facepunch. Glynn seeks to hold Facepunch to “the deal” allegedly negotiated in the text message exchanges. Judge Noel denied Glynn’s motion to amend his complaint, essentially concluding that, even with the newly discovered evidence, the alleged offer and the alleged acceptance were still too vague to establish a legally enforceable contract as to profit-sharing.

Here linked is Facepunch’s response to Glynn’s objection to Noel’s decision denying Glynn’s motion to amend. And here linked is BP/Glynn’s reply.

I predict that Facepunch will win before Judge Doty, as it did before Judge Noel. Here’s why: our civil justice system can and should set incentives for people and businesses to negotiate and to adhere to clear-cut agreements. Setting up a system in which a party can cobble together a supposedly binding contract from text message snippets exchanged over years, and the like, should be discouraged. It is an open invitation to protracted and expensive disputes.

It may be true that Facepunch got more than it deserved from the work that BP/Glynn did for Facepunch. But maybe BP/Glynn is responsible for its failure to make the rules of the engagement clearer from the start.

Updated post (October 7, 2016): Plaintiff Bubble Pony tried to amend its complaint a second time and U.S. District Court Judge Franklin L. Noel denied BP’s second motion to amend this week. I discussed the motion below because BP withheld its reasoning for the motion from the public, supposedly out of respect for a court order.

The linked order solves the mystery of BP’s redacted motion. BP wanted the court to see that the vague commitment that Defendant Facepunch made via email (which the Court already held too weak to be construed as a binding contract) was also made in a text message exchange. And guess what? Judge Noel held that 2 x 0 = 0, denying the motion.

This situation underscores a common and fundamental misunderstanding among many people and even some businesses about the nature of contract law under U.S. and state law: it is not enough to have “a writing” — just anything in writing — to make a contract legally enforceable.

Here is another similar common misunderstanding: just because you did not SIGN a contract that you entered into with another person does not necessarily mean that you will not be held legally bound by a contract or liable under some other theory of liability (such as unjust enrichment, promissory estoppel, or even fraud). “[W]hen an agreement is reduced to writing but is signed by only one of the parties, it is binding on the non-signing party if that party has manifested consent to its terms….What is critical is mutual assent to be bound.” The quote is from a 2002 Tennessee court decision but it expresses a basic principle of contract law. (Having said that, you will likely be on more solid ground if you get a counter-party to sign a contract than you will be if you proceed with an unsigned contract.)

Original post (August 27, 2016) (under the headline, “The Privacy Puzzle of Public Courts For the Resolution of Private Disputes”): I have a soft spot for Bubble Pony vs. Facepunch, pending in the U.S. District Court (D. Minn.) (Doty, J.) because of the case’s funny name. The case sounds like a level of Super Mario Smash Brothers that I never reached and the case does, in fact, concern computer gaming. I also have blogged about about the case repeatedly because it is a strange case even aside from its funny name.

I note this week that Plaintiffs wish to amend their complaint a second time because the following has come to light in discovery: ________________________.

That is, Plaintiffs have submitted a motion to amend and they have blacked out or “redacted” the basis for their motion.

What is the basis for filing the memorandum under seal? According to the filer, it was filed under seal “pursuant to a court order.” What court order requires that Plaintiff’s unredacted memorandum be filed under seal? The case’s protective order, the filer claims. And does the protective order, in fact, require that the unredacted memorandum be filed under seal? Of course not. That would be impossible because the protective order pre-existed the memorandum. In fact, the referenced order specifically sets out  limitations on what may be filed under seal (Section 9, pp. 3-4).

Presumably Plaintiffs or perhaps Defendants have decided that the referenced completely redacted “chat transcript” quoted in the memorandum of law constitutes “confidential commercial information,” and as such qualifies for filing under a protective order. This seems odd, however. The lawsuit is a public dispute, brought by Plaintiffs to resolve what percentage of profits Plaintiffs are entitled to. Evidence bearing on this key issue, which is publicly discussed at great length in the Plaintiff’s public complaint (see, for example, page 2), is treated as “confidential commercial information” ???

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